Labor & Employment Law Daily Washington federal jury awards $6.85M on FedEx driver’s disability discrimination, retaliation claims
Thursday, November 19, 2020

Washington federal jury awards $6.85M on FedEx driver’s disability discrimination, retaliation claims

By Pamela Wolf, J.D.

The award included $5,000,000 in punitive damages for malice or reckless disregard of the driver’s rights against disability discrimination.

On November 16, 2020, following an eight-day trial, a federal jury in Washington determined that FedEx Freight Inc. must pay more than $6.85 million to a former employee who alleged he had been forced out of the company because of his disability. In its verdict, the jury found that the employee had proved his disability and retaliation claims under both the Washington Law Against Discrimination and the Americans with Disabilities Act.

Notably, the trial was conducted entirely through Zoom, believed to be one of the first jury trials conducted via the videoconferencing platform.

Not permitted to return to work. The case was initially filed in state court, but FedEx removed it to federal court. The employee worked as a long-distance truck driver with FedEx Freight based in Everett, Washington. When he revealed knee limitations arising from a series of knee surgeries, the company removed him from driving pending a medical evaluation. But when the medical examiner found him safe to drive, FedEx would not return him to work, according to the complaint.

State and federal disability laws require employers to let disabled employees work when they can safely do the job. The Department of Transportation regulates the physical qualifications for truck drivers but leaves medical decisions to the discretion of approved medical examiners.

Retaliation. The jury found that FedEx had refused to let the employee work because he spoke up against disability discrimination, protesting the company’s rejection of its medical examiner’s opinion that he was physically qualified to drive despite a knee condition. According to the plaintiff’s attorneys, witnesses testified that the company was concerned by the employee’s vocal opposition to disability discrimination, including a request to bring in a lawyer to negotiate his return.

Witnesses testified that FedEx managers jumped to conclusions about the employee’s limitations and refused to accept his repeated statements that his knee condition did not prevent him from working. After more than 100 days without pay or response from FedEx, the employee found other work and did not return to the freight company.

FedEx argued at trial that its treatment of the employee was no different than its treatment of any other employee. However, the jury disagreed.

Damages. As a result of being forced out of a job, the employee lost his income and his health insurance. Necessary treatment for a cancer diagnosis in September 2019 was delayed because he could not afford care, his attorneys said.

The jury deliberated for about two-and-a-half days before reaching a unanimous verdict. The jury awarded the employee $129,278 in past economic and $272,465 in future economic damages. The jury also awarded the plaintiff $1,750,000 for emotional harm. However, according to the jury, the plaintiff had failed to mitigate his damages. The jury thus reduced his damages by $300,000.

Finding that FedEx action with malice or reckless indifference to the plaintiff’s rights against discrimination under the ADA, the jury also awarded $5,000,000 to deter similar misconduct in the future, bringing the total damage award to $6,851,743.

Zoom format successful! After being shuttered for months, the U.S. District Court returned to civil jury trials using the Zoom videoconferencing platform. While jurors watched the trial from remote locations, the attorneys presented witnesses and evidence entirely via video. The judge controlled the proceedings from her chambers in the courthouse in downtown Seattle. The all-video trial is believed to be one of only a handful of such proceedings conducted in Washington; Florida and Texas have also held jury trials entirely by Zoom in recent months.

The Zoom format was a challenge for the lawyers but a welcome alternative to the months of backlog caused by the COVID-19 pandemic. “Trial is always a hectic time,” said AKW LAW, P.C., attorney Jordan Wada, a member of the plaintiff’s trial team. “Learning new video technology and broadcasting skills created another layer of complexity. Our offices became a TV studio but getting the justice system functioning again was well worth it.”

“Our clients rely on a justice system to resolve disputes when the parties cannot,” said firm owner Ada K. Wong. “We appreciate the U.S. District Court’s decision to reopen the courts by adapting to new technology.”

The plaintiff was also represented by Beth Bloom of Bloom Law, PLLC; Winthrop Hubbard also worked on the litigation team.

The case is No. 2:18-cv-01164-MJP.

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